Non-attendance at a Crown Court Appeal and Procedural Unfairness

The claimant was the driver of one of three vehicles which were involved in a damage only collision. He was summoned to the Magistrates Court in relation to the offences of driving without due care and attention (contrary to s.3 of the Road Traffic Act 1988), and failing to stop and failing to report the incident (contrary to s.170 of the 1988 Act). The claimant's trial was during the time of the pandemic and, as a result, it was listed eight times and adjourned before being finally heard. The claimant did not attend the hearing and was found guilty of the offences in his absence. He was fined, disqualified from driving for nine months, and ordered to pay costs. A subsequent appeal against conviction was listed at Cambridge Crown Court sitting at Peterborough. It was called on time on the relevant Monday but the claimant was not present. The clerk of the court contacted the claimant by telephone and was informed that he was travelling from London to the court in a car being driven by a friend. The claimant also informed her that in accordance with a Notice of Hearing form which he had received, he had tried to call the court the previous Friday but his calls had gone unanswered. The clerk was able to confirm to the judge that there had been a problem with the telephones at Cambridge that day. She also informed the judge that the claimant had tried to call the County Court at Peterborough a number of times on the relevant Monday morning, but had once again failed to get through.

Having been invited by the judge to make a submission, counsel for the prosecution asked that the appeal be dismissed as he had two witnesses, one of whom was at the court and the other who was attending by live link from Worcester Crown Court. Counsel drew the judge's attention to the fact that the claimant had failed to attend on two previous occasions at the Magistrates Court, including on the day of his trial. The court (the judge and two magistrates) retired to consider the matter. When it reconvened, the claimant was still not present. On enquiry from the judge, the clerk indicated that there had been no further communication from the claimant in the intervening period. She also pointed out, however, that there was nobody that he could have rung. At the request of the court, the clerk contacted the claimant again and was informed that he was still some distance from the court building. Following a further short adjournment, the court reconvened and the judge stated:

“We’re not prepared to adjourn further. It seems to us the appropriate course of action is to dismiss the appeal and we do so. We make no order as to costs”.

The claimant eventually arrived at the Crown Court nearly 3 hrs after his appeal had been due to be heard. Subsequently, a legal representative acting on the claimant's behalf applied to the court to re-open the appeal by reference to the slip rule in s.142 of the Magistrates’ Courts Act 1980. At the hearing, however, the judge concluded that the provision did not afford a jurisdiction to reinstate the appeal. At no time during the hearing was the claimant asked to explain why he had been absent when his appeal was called on.

The claimant sought judicial review of the decision of the Cambridge Crown Court to proceed in his absence and dismiss his appeal against conviction without hearing evidence. It was common ground that the claim raised three issues: (i) whether the Crown Court had power to dismiss the appeal, or strike it from its list, or whether the court if it decides not to adjourn must hear evidence and decide the substantive appeal; (ii) whether the Crown Court had exercised its power to dismiss the appeal reasonably or whether the only reasonable course of action was for the court to adjourn the hearing; and (iii) since it was conceded on behalf of the Interested Party (the DPP) that the court had jurisdiction following the dismissal of an appeal to restore it to the list, whether any application to restore would fail on its merits.

HELD, ALLOWING THE APPLICATION, that on the basis of the authorities, the Crown Court did have the power to strike the appellant's case from the list. However, whilst the Administrative Court had some sympathy for the judge who plainly had other matters in his list, the decision to strike the case out, rather than further adjourn, had been unreasonable. The judge had heard no full explanation as to why the claimant was late, and gave no reasons to explain why he considered it to be in the interests of justice to adopt the course which he took. This unfairness was compounded by the failure of the judge to direct that he would hear from the claimant if and when he arrived at the court. Had it been necessary to decide the merits of an application to restore the case to the list, it would have been concluded that there was a very strong and satisfactory reason for the claimant's absence, such that his appeal should be restored to the list.

Commentary

Introduction

A failure by an appellant to attend a Crown Court hearing of their appeal may arise due to circumstances beyond their own control, such as where they are delayed in traffic, as was the case in Lawal, or on medical grounds: see R (on the application of Hayes) v Chelmsford Crown Court [2002] EWHC 73 (Admin). Alternatively, non-attendance may be a deliberate choice, as occurred in R v Croydon Crown Court, ex parte Clair [1986] 1 WLR 746. Here, the applicant, who had been found guilty of assaulting a police officer in the execution of their duty (now contrary to s.89(1) of the Police Act 1996), “did not want to go to his new employers and explain to them that he had just been convicted of this offence and ask for some time off in order to attend court while the appeal took place” (per Croom-Johnson LJ at 747F-G). Despite his non-attendance, the appellant in ex parte Clair was deemed to be present since he was represented by counsel. This was in accordance with s.122 of the Magistrates’ Courts Act 1980, which now provides, as amended:

“(1) A party to any proceedings before a magistrates’ court may be represented by a legal representative. (2) Subject to subsection (3) below, an absent party so represented shall be deemed not to be absent”.

In ex parte Clair, the operation of this statutory provision therefore meant that an application made by the appellant's counsel for the appeal to be heard in his absence amounted to a “courtesy to the court” rather than a legal necessity. In the earlier case of R v Liverpool City Magistrates’ Court, ex parte Quantrell [1999] 2 Cr App R 24, Collins J had opined:

“It seems to me that the purpose of section 122 (MCA) is to enable matters to proceed in the absence of a defendant provided he is represented. The 1980 Act is drafted, not surprisingly, on the assumption that the defendant is going to be present at court. That is why we find in section 122(1) the provision that a party represented is deemed not to be absent” (at 30).

Where an unrepresented appellant does not attend their hearing at the Crown Court, there are three potential courses of action available to the court: adjourn the appeal; determine the appeal by way of a re-hearing of the evidence; or, strike the case from the list. In Lawal, counsel for the interested party, the DPP, submitted that in the absence of the appellant (a litigant in person), the Crown Court had the power to take the third course, i.e., to dismiss or strike out the appeal without hearing the evidence. It was further contended that this power is “tempered” by the ability of the court to restore the appeal to its list in appropriate circumstances. In deciding the present case in favour of the claimant, Cutts J was much influenced by the authorities, in particular the decision in R v Croydon Crown Court, ex parte Clair [1986] 1 WLR 746.

Ex Parte Clair

The facts of this case have been briefly referred to above. What was not made clear previously was that the appellant was actually one of three individuals who had been found guilty of assaulting police officers in the execution of their duty. Their convictions related to a struggle which had taken place after they had refused to comply with an officer's request to get off an overfull bus. At the hearing of their appeal, they had all been represented by the same counsel. Unlike the appellant, however, the other two men attended the hearing in person. Since it was accepted by the prosecution that there had been no breach of the peace at the material time which entitled the police to act as they did, the Crown Court concluded that the police had not been acting in the execution of their duty when they were assaulted. Accordingly, it quashed the convictions of the two appellants who were present. In the case of the absent appellant, however, since the Crown Court had refused to hear his appeal in his absence, counsel had no option but to withdraw it. As a result, therefore, he remained convicted of the offence. The unfairness of such a state of affairs is plain since, “it was quite obvious that if the court had heard the applicant's appeal in his absence his appeal would have had to be allowed in the same way as those of [the other two appellants]” ([1986] 1 WLR 746, per Croom-Johnson LJ at 748C).

In addressing the issue of the appellant's non-attendance at the hearing, and whether his appeal should nevertheless have been heard in his absence, Croom-Johnson LJ remarked:

“One gets this is in the Court of Appeal (Criminal Division) where an appellant is entitled to be present at his appeal against conviction, but there is no obligation upon him to be present if he is not in custody and chooses not to come and see what happens” (at 748D-E).

What caused the Divisional Court to decide the case in the applicant's favour, however, was the operation of s.122 of the Magistrates’ Courts Act 1980 (see above). Since the wording of the provision meant that the Crown Court had been in error in refusing to hear the applicant's appeal, its decision was quashed and an order of mandamus (now a mandatory order) was issued directing the court to hear the appeal. The factual matrix in Lawal was rather different to what had happened in ex parte Clair. Nevertheless, Cutts J was of the view that the clear principle established by the earlier decision applied to the present case, such that the Crown Court did have the power to strike the claimant's appeal from its list. The crucial issue in Lawal was therefore whether this power had been exercised reasonably.

Other Authorities

As Cutts J explained, it was common ground between the parties that when determining whether to dismiss or adjourn the appeal hearing, the Crown Court “had to apply the interests of justice test” ([2023] EWHC 466 (Admin) at [27]). Despite being of the view that previous decisions were of “limited assistance” given that each turned on its own particular facts, Cutts J did derive some assistance from R v Doncaster Magistrates’ Court, ex parte Blick [2008] EWHC 2698 (Admin) and R v Khan [2021] EWCA Crim 1526. In the former, in holding that a District Judge's refusal to grant an order to reopen a case had been “fatally flawed”, Aikens J observed that “the inconvenience of the court can never outweigh the interests of justice” (at [19]). In Khan, which concerned an appeal against a restraining order imposed pursuant to s.5A of the Protection from Harassment Act 1997, and a District Judge's decision to proceed in the applicant's absence despite the fact that he was unrepresented and had communicated to the court that he was on his way, the Court of Appeal had “some sympathy for the Judge” (at [25]). Nonetheless, it was of the view that “the decision whether to proceed in a defendant's absence must be taken cautiously,” and that on the facts, it had been procedurally unfair not to adjourn the hearing given that “there was a substantial disadvantage to the defendant in proceeding in his absence” (at [26]).

It is notable that in Lawal, Cutts J also had “some sympathy for the judge in this case who plainly had other matters in his list” ([2023] EWHC 466 (Admin) at [35]). Like Khan before it, however, this did not obscure the fact that the court had erred in not granting an adjournment.

Conclusion

Given that access to justice is a fundamental feature of the operation of the English legal system, executive attempts to erode it have been stoutly resisted by the judiciary: see, for example, R v Lord Chancellor, ex parte Witham [1998] QB 575. On occasion, however, unfairness in the present context may arise not as a result of laws made by Parliament or ministers, but due to decisions made by the courts themselves. The decision in Lawal, and the authorities which were referred to by Cutts J during the course of her judgment (these also included R v Guildford Crown Court, ex parte Brewer (1988) 87 Cr App R 265), thus make clear that if a court acts in breach of the rules of natural justice or, in modern parlance, in a procedurally unfair or improper manner, then errors may need to be corrected by the appeal courts. Where litigants in person are involved, dismissing an appeal in their absence ought to be a course of action which is taken with extreme reluctance, and in the light of compelling evidence that it is in the wider interests of justice to do so. Thus, even at a time when the backlog of cases before the courts is such that further delays ought generally to be avoided, fairness may nevertheless demand that hearings be adjourned rather than appeals be dismissed in the absence of an unrepresented appellant.

A final point to note concerns the fact that the appellant in Lawal represented himself. He was up against a KC and junior counsel for the DPP. Whereas in Khan, the Court of Appeal concluded its judgment by suggesting that in future legal proceedings, the interests of the applicant “and the wider interests of justice, are likely to be better served by his being represented by a professional advocate” ([2021] EWCA Crim 1526 at [39]), in Lawal, Cutts J noted that whilst the claimant's submissions on the law had been “succinct”, they were “nonetheless clear and well argued” ([2023] EWHC 466 (Admin) at [22]). The fact that he succeeded in his claim is therefore testament to the continuing importance of the “fundamental principle of law that an individual has the right to represent him or herself in court in the ordinary course of litigation”: see Cambrell, ‘Self-represented litigants – balancing impartiality and the right to a fair trial: the judge's duty’ (2019) 38 CJQ 232 at 237.